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CENTENNIAL 



OF 



MASSACHUSETTS CONSTITUTION. 



BY 



ALEXANDER H. BULLOCK. 







THE CENTENNIAL 



OF THE 



MASSACHUSETTS CONSTITUTION. 






prepared at the request of the president of the american 

Antiquahian Society, and read at the Semi-Annual 

Meeting of the Society, in Boston, 

April 27, 1881. 






BY 






ALEXANDEE H? BULLOCK. 



WORCESTER: 
TRESS OE CHARLES HAMILTON. 

1881. 



THE CENTENNIAL OF THE MASSACHUSETTS 
CONSTITUTION. 



The Colony of Massachusetts had hardly secured a firm 
foothold here as a permanent settlement, exercising the 
functions of government, when the colonists began to make 
a demand for a formula of securities or liberties, the equiva- 
lent of which is nearly expressed by our term Constitution. 
The Englishman, removed to a home in Massachusetts Bay, 
passed at once under the elation and expansion of a con- 
scious freeman. The records of that time reveal to us, as 
clearly as any history can disclose the consciousness of a 
generation of men two centuries and a half after their 
existence, that the freshly arrived immigrant felt the tradi- 
tional restraints of his European life falling from him, and 
Avas consciously invested with new dignity and hope, with 
new resolve and power. Within four years after the 
coming of Winthrop the settlers became impatient that 
their liberties should be registered in clearly defined form 
and ordinance. This impatience manifested itself as early 
as 1634 in palpable proceedings, which aimed at having 
their rights reduced to the letter and form which should 
limit even the magistrates who had their highest confidence. 
Having already obtained the right of popular representation 
by deputies, they secured in 1G35 the appointment of a 
commission, as we should now call it, which should " frame 

a body of grounds of laws, in resemblance to Magna Charta, 

3 



Centennial of the Mass. Constitution. 

which should be received for fundamental laws." This 
commission, several times changed as to its members, 
finally secured in 1641 the enactment of the code of a 
hundred laws, called the Body of Liberties, of which a copy 
was discovered in the old Athenaeum in Boston by Mr. 
Francis C. Gray about sixty years ago. This first American 
code of public and private securities, the Magna Charts of 
that day, may in a certain sense be termed the first Consti- 
tution of this Commonwealth : or rather, reading the articles 
in the light of all which has happened since, I should ven- 
ture to call them the Massachusetts Institutes. A perusal 
of this code cannot fail to vindicate the claim of its author, 
Nathaniel Ward, minister of the town of Ipswich, to our 
grateful remembrance for having brought to America great 
benefits from his study and practice of law in England : 
and I am sure that every thoughtful reader of this Puritan 
pandect will cordially concur in the opinion, which forty 
years ago Mr. Gray pronounced before the Massachusetts 
Historical Society, that it manifests a quality of wisdom, 
equity and public adaptation far in advance of the time in 
which it was written. To this opinion I will add, that after 
allowance for that portion of these institutes which was 
derived from the Pentateuch, and which must he accepted 
as the reflected sentiment of a Theocracy which is scarcely 
appreciable in our own time, there are other parts of this 
constitutional hreviate which bear the marks of bold and 
statesmanlike originality fit for the affairs of a complete 
modern commonwealth. That they may he regarded as 
having been the forecasting of the coming state, is attested 
by some of them having since been incorporated into our 
present Constitution. Although these Fundamentals were 



Early Aim at Independent Government. 

adopted for only a term of three years, yet the more 
important of them passed into the volume of enduring 
colonial legislation, and aided largely in the gradual framing 
of the beneficent fabric which now overshadows us with the 
safety which everybody feels, but which not everybody 
traces to its simple and august beginning. 

During the one hundred and forty-four years which inter- 
vened between the founding of the colony and the first 
decisive act of Gage at Salem in 1774, which heralded a 
new era, the people of Massachusetts continued under the 
government of the charters. But during the whole of this 
period there was a constant though varying accumulation 
and cohesion of the elements of a sovereign and free state. 
Ours was in many respects a free republic from the start, 
and our provincial annals abound in prophetic signs of 
coming independence. The spirit of this independence was 
never in profound sleep, from the first and singular fortifying 
of the harbor, five years after the advent, to the day of the 
first levy of arms in the next century. In many of those 
years kings were so deeply engrossed in home pleasures 
and home politics, and in many other years the puritans 
were so deeply engrossed in their own civil and religious 
strifes, that the reader of events is often diverted from 
observing the under-current which was steadily bearing 
the state towards the only ultimate result. This province 
was at no time without statesmen grounded in the learning 
of the English Constitution, and in all the progressive stages 
of the rising local republic their discernment was fully equal 
to every changing situation. In that school of trial they 
were practicing themselves for their purpose more rapidly 
than they knew, and were practicing a more profound policy 



Centennial of the Mass. Constitution. 

than was known by their kings. Their purpose as freemen 
was frequently held in reserve by a masterly suppression, 
and their assurance as prophets was frequently held in check 
by a masterly diplomacy. Under Cromwell the Massachu- 
setts puritan moved in straight lines towards independence, 
under Charles restored the Massachusetts puritan was politic 
as a Machiavel or a Talleyrand ; but under every reign lie 
was constant]}- advancing in the grooves of destiny, some- 
times a little tortuous and sometimes very direct, always 
towards his freedom. Such drift and purpose must some- 
time reach its end, and when a king so resolute and 
obstinate as Geoige the Third sat on the throne, and a 
puritan so resolute and obstinate as Samuel Adams 
directed Massachusetts, the end could no longer be post- 
poned. 

The adoption of the Declaration of Independence in 1776 
introduced in the several states new tonus of government 
which were without precedent or example in the world. 
When colonial dependency was annulled and autonomy took 
its place in thirteen republics, a new method of formulating 
the will of states came into use and became henceforth 
distinctively The American System. Written constitu- 
tions, framed by the people for their own government, and 
made unalterable even by themselves save in most indu- 
bitable and solemn manner, accepted as the only source of 
power to all administrations and absolute criteria of security 
to all subjects, have now been in use here during a century 
and have set us apart from the other peojdes of the globe. 
The adoption of the American plan was a logical necessity. 
The dissolution of dependency cast Americans upon their 
own capacity for government with no guidance except their 



Written Constitutions the American Plan. 

knowledge of history and their own shackled experience. 
They had grown up in the knowledge of the muniments of 
the British Constitution, but the elemental principles of that 
Constitution for public and private liberty lay spread over 
five centuries and a half since Magna Charta, had never had 
any existence as a code, and had neither the unity of one 
fixed interpretation by continuous generations, nor any 
sanction of immutability. Since English constitutional 
liberties had been in their origin concessions from the crown, 
given in times of exceptional popular awakening, even the 
repetition of the demand and concession from reign to reign 
had scarcely given the ease of repose to the mind of the 
subject. According to the authority of Professor Creasy, 
in his work on the English Constitution, the terms of Magna 
Charta itself have needed to be confirmed by kings and 
parliaments upwards of thirty times. Even in the present 
day of established construction, in which the English 
constitution has attained a complete solidity of crystalliza- 
tion, if we seek to find its rise and growth we have to read 
with collating care the histories of Hallam and May 
extending over a period of nearly five hundred years ; and 
after all the reading we come to no such muniments as those 
of our own written Constitution, founded in a universally 
acknowledged social compact, "the whole people covenant- 
ing with each citizen and each citizen covenanting with the 
whole people ;" so unshackled in outline, so solid in frame- 
work, so solemn in sanction, as to be beyond every fear 
short of revolution. The term unconstitutional as it is used 
in England bears a signification altogether different from its 
meaning in Massachusetts. "By the term unconstitutional, 
[says Hallam], as distinguished from the term illegal, I 



Centennial of the Mass. Constitution. 

mean a novelty of much importance, tending to endanger the 
established laws," — a definition which scarcely reaches the 
incisiveness of a decree of unconstitutionality pronounced 
by the highest judicial tribunal of an American state. It is 
true that many of the constitutional guaranties which the 
people of this state a century ago engrafted upon their form 
of government had been inherited by them, and had become 
so sacred by tradition and use that no tribunal would ever 
after have been likely to deny them ; but for their double 
assurance they resolved to re-define them, to reduce them 
to a system and a code, to add man}' things which could 
have had no existence under a monarchy, and to throw 
about them safeguards of their own creation. 

This necessity for a written constitution was reenforced 
by another consideration. The advance in modern thought 
on government had at that time reached one important 
^conclusion on tins side of the water never before fully 
recognized on the other, nor indeed recognized there now 
to anything like the extent of the American opinion. I 
refer to the strict division of government into coordinate 
branches, each exclusive of the others, nowhere else 
expressed as in the American constitutions. There is no 
one feature of our governments which so clearly ensures the 
security of public or private rights as the setting the judicial 
power solemnly apart as a governing organ of the constitu- 
tion, beyond the reach of the arm of the executive and 
legislature ; and this was a stage of advancement which had 
not been made in a degree of perfection anywhere before 
the American Revolution. The men of Massachusetts saw 
the necessity of making this eminent consecration of the 
judiciary certain and enduring by a fundamental liberty 



j 



The Virginia Oonstitution first of all. 

recorded in written and unmistakable words. They had 
seen in the parent country the ultimate decision on judicial 
appeal lodged in one of the houses of the legislature, and 
they saw no way of closing the door upon this exposure to 
abuse, but by a written constitution which should shut off 
and protect a pure and fearless judiciary against encroach- 
ment from .any quarter. Englishmen themselves have 
learned to regard the American plan, under which each 
coordinate power is protected from every other power by 
registered constitutional language, as the conservator of 
every right and interest, of every class and condition ; and 
during their excitement over the Reform Bill fifty years 
ago, when the upper house barely escaped being swamped 
by the crown, their conservative statesmen did not hesitate 
to acknowledge the superior safety of the written constitu- 
tions of our states. 

The statesmen of Virginia have justly boasted that theirs 
was the first written constitution, formed by a free and 
sovereign state, which the world has possessed. The state 
convention from which this instrument emanated assembled 
early in May, 1776, several weeks before the subject of 
recommending- new governments in the states was acted on 
by the Continental Congress at Philadelphia, and that 
ancient state may rightfully wear in its coronet this high 
historical distinction. No other state has the power, no 
other state has the desire, to dispute this impressive priority 
in the noblest group of governments of modern time. But 
the truth of this history is only fully completed in the state- 
ment, that nearly two years before that time Massachusetts 
had initiated proceedings which had the same purpose in 
view, and had already set up self-government over its 



Centennial of the Mass. Constitution. 

domain. On the seventeenth of June, 1774, the date of 
practical independence in Massachusetts, the last day of 
any other government and the first day of its own govern- 
ment on its own soil, the house of Assembly, in session at 
Salem, with its door locked against the governor, Avhile the 
decree of its dissolution was read on the stairs outside, 
provided for a provincial house of representatives to take 
the place of the General Court which was never again to he 
convened. Massachusetts was launched, somewhat uncere- 
moniously to he sure, but none the less certainly, the first 
autonomous republic in America ; and Samuel Adams was 
the master and guide of the event. Before any counsel 
could come from Philadelphia, because it was before there 
was any Congress at Philadelphia to give counsel, he com- 
manded the situation at Salem on that historical day. and 
he first in America turned the key on monarchy. The 
history of self government in this Commonwealth thus starts 
with the fact that its people for the space of a whole year 
were without any direction beyond that of this provincial 
assembly and of the committee of safety, and that all the 
while, without any regular executive, and in the presence 
of hostile arms, they maintained civil order and brought no 
scandal on liberty or justice. This provincial assembly, 
stimulated to take another step forward by the afi'air at 
Lexington and Concord of April 19th, proceeded on May 
KUh, 1775, under the counsel of Gen. Warren, to ask the 
advice of the Congress at Philadelphia upon the best method 
of exercising the powers of civil government : on June 9tib 
the Congress advised that the colony, accepting the singular 
hypothesis that the office of Governor was to be treated as 
vacant, should clothe a newly-chosen Council with the 

10 



Massachusetts the first to set up Self- Government. 

executive power " until a Governor of His Majesty's 
appointment would consent to govern according to its 
charter;" and only ten days afterwards, on June 19th, a 
call was made for the election of a provincial assembly ; 
which only thirty days later, on July 19th, convened in 
Watertown. In their anxiety for the maintenance of the 
civil functions of society the people moved with a rapidity 
and quietness which illustrated their earnestness of purpose 
and their solemn sense of responsibility. This body at 
once elected a new set of councillors to act in the double 
capacity of legislative and executive administration, with 
James Bowdoin as their President ; thus planting a pro- 
visional government upon a fiction of law which was the 
ultimate as yet reached by the wisdom at Philadelphia, and 
upon an anomalous confusion of the organs of government 
which was destined to continue four years longer. Although 
civil process and appointments were issued in the name of 
the king, the commission of John Adams as Chief Justice 
being conferred in that style, the public endured this 
anomaly with patience until May of 1776. On the first day 
of that month, now as before acting in advance of the 
Congress at Philadelphia, the processes and commissions of 
Massachusetts were ordered by its leaders to run in the 
name of its " government and people," in lieu of that of the 
king. This was two weeks before John Adams succeeded 
on the 15th of May in carrying through the Continental 
Congress Ms celebrated resolution for the suppression of 
every kind of authority of the crown and advising the 
several colonies to establish their own governments : which 
resolution itself was adopted two weeks before the question 
of declaring Independence came to its sublime decision, and 

11 



Centennial of the Mass. Constitution. 

which he proudly named the cutting of the Gordian knot. 
Now for the first time our own legislative assembly took the 
preliminary steps for forming a State Constitution. Enter- 
ing upon the subject in June, 1776", the assembly decided 
on the 17th day of September to advise the people to 
choose their deputies to the next General Court with full 
power to frame a Constitution ; and this advice was repeated 
May 5th, in 1777. Although in the interim after the dis- 
solution of this assembly the people in several public 
conventions, notably in the County of Worcester, and in 
many of their town meetings, had insisted upon the calling 
of a special convention solely for so grave a work as the 
framing of a new government, yet a majority of the repre- 
sentatives came together fully authorized to enter upon this 
great business; a joint committee of the Council and 
assembly agreed upon a constitution, which was approved 
by the two bodies February 2tfth, 177*, and was sent out 
in March for popular ratification. It is one of the omis- 
sions in our annals that the proceedings of this committee 
were never given to the public inspection. 

But this constitution, which required the assent of two- 
thirds of those voting on it to secure its acceptance, received 
only two thousand of the twelve thousand votes which were 
returned : partly perhaps because of its imperfect delineation 
and division of government powers : in part no doubt 
because it was not accompanied by a Declaration of Rights, 
on which at that time the popular heart was strongly set : 
and chiefly because of the general conviction that our 
organic frame-work of government could properly come 
only from a convention chosen solely and sacredly for that 
one piece of work. This first form of a constitution, con- 

12 



7 

The Rejected Constitution of 17p8. 

trusted with the orderly and stately instrument afterwards 
framed and adopted, exhibits most glaring defects, whilst 
some of its incongruities reviewed in the light of the subse- 
quent experience of a century would now fail to command 
respect. The Governor and Lieutenant-Governor were to 
have " a seat and a voice in the Senate ;" the Governor was 
to be president of the Senate ; and in the distribution of the 
functional powers of government "the Governor and 
Senate " are spoken of in a manner corresponding to our 
present municipal phraseology of ' ' the mayor and alder- 
men," in strange mingling of the executive and legislative 
departments. The instrument contained no provision for 
an executive council, and the high power of executive 
pardon was lodged with the Governor, Lieutenant-Governor 
and Speaker of the house of representatives, or " either two 
of them." Senators for each district were to be chosen by 
a vote of the whole people of the state. All persons not of 
the protestant religion were made ineligible to either the 
executive, legislative or judicial orders of the government. 
The dignity and independence of the executive were very 
inadequately provided. It is unnecessary to pursue the 
subject with further detail. The vote of the people showed 
that they deemed the structure of this constitution an utter 
failure, and only one-sixth part of the ballots were given in 
favor of its acceptance. A remarkable demonstration in the 
canvass of its merits was made by a convention of many 
towns of the County of Essex held at Ipswich in April, 
1778, which appointed a committee to report upon the true 
principles of government required for the public safety. 
At an adjourned meeting of the convention in the following 
month this committee reported an exhaustive treatise on the 

13 



Centennial of the Ma&&. Constitution. 

whole subject, which became known as " the Essex Result." 
This argument, understood to be the production of Theo- 
philus Parsons, afterwards the eminent Chief Justice of the 
Supreme Judicial Court, was marked by the intense grasp 
and comprehensive generalization, by the power of state- 
ment and of clearly-drawn distinctions, which in later years 
distinguished his published opinions, and it must have con- 
tributed essentially to the defeat of the proposed constitu- 
tion. And the people of the state were still without an 
established government. 

Mr. Charles Francis Adams has advanced the opinion 
"that interests had already grown up. in the period of 
interregnum, adverse to the establishment of any more 
permanent government ;" and he finds color for this sugges- 
tion in the fact that when the legislature in the next year, 
177!), took steps for another trial for a new government, it 
put to the people the composite question, first, whether it 
was their will to have a new form of government, and 
second, whether they would authorize their representatives 
to call a convention for the sole purpose of framing one. 
Nor is this suggestion by any means without extraneous 
support. Massachusetts was moving on its daily life under 
the momentum of traditional observance of law and order 
which had grown up under the charters, which had now 
been modified in practice to a degree that answered the 
needs of all functional routine through four years of experi- 
ence : and the conservative force of popular inertia, even 
amid public crises, is attested by the fait that a very large 
proportion of the citizens made no return of any action 
whatever upon the preliminary questions in both attempts 
for a constitution. Rhode Island lived on under its charter 

1 t 



Six Years of Autonomy without a Constitution. 

sixty years after the resolution of the Continental Congress 
had suppressed it, and it remained a mooted question in 
Connecticut until the year 1818 whether its people had any 
constitution or not. But the return of the votes upon the 
question referred to them showed that a majority of our 
people favored the call of a convention, and on the 17th day 
of June, 1779, precepts were sent out for the election of 
delegates, who should assemble in the following September. 
Accidentally the conjuncture of dates links the beginning 
and the end of this high enterprise with a day forever set 
apart in the Western world by the opening battle of the 
Revolution. On the 17th day of June, 1774, the repre- 
sentatives of the state took at Salem the first step for self- 
government ; on the same day in the next year every retreat 
was cut off by bloodshed at Charlestown ; and on the same 
day live years later their successors ordered the completion 
of the work. As the constitution now to be created did 
not go into effect until October, 1780, it appears that from 
the eventful day at Salem more than six years were to elapse 
before the commonwealth should come into possession of a 
genuine government. It is a tribute which history will 
ever pay to the heroic energies of that generation of men, 
to their capacity for government, to their innate reverence 
for law and authority, to their strong and enduring sense of 
nationality, to their love of liberty moderated by their love 
of justice, that they carried on a free republic through all 
that period by their unaided self-denial and self-control; 
that, rather than act hastily in a matter so grave to them- 
selves and their posterity, they endured for six years the 
uncertainties and inconsistencies of an illusive and baseless 
fabric of government ; that they deemed the benefits of a 

15 



Centennial of the Mass. Constitution. 

perfect constitution within their own borders might come 
only too soon, if attained by abating one jot or tittle ot 
devotion and sacrifice to the common cause of all the states. 
The convention which framed the constitution under 
which we now live assembled in the meeting-house in 
Cambridge September 1st, 1779, and after seven days took 
a recess till October 28th, having first committed the task 
of preparation to a committee of thirty : it re-assembled 
on the 28th of October, and on the llth of November took 
a further recess till January 5th, 1780; on that day it met 
in the old state house in Boston, but by reason of the bad 
travelling over the state continued without an efficient 
quorum till the 27th ; on which day the labor was resumed 
and went on without further interruption until it was 
completed on the 2d day of March. Of this body, which 
comprised, as I make out from the journal, three hundred 
and twelve delegates, James Bowdoin was elected President. 
Of the exalted character of this assembly no one can hesitate 
to concur in the opinion expressed by Mr. Robert C. 
AVinthrop in his admirable address on the services of Gov. 
Bowdoin, that it contained "as great a number of men of 
learning, talents and patriotism as had ever been convened 
hei'e at any earlier period ;" and I venture to add, that it has 
not since been equalled by any public body in the state, 
unless possibly by the next convention which met in 1820. 
John Adams, Samuel Adams, Hancock. Lowell, Parsons. 
Cabot, Gorham, Sullivan, Lincoln, Paine, Cushing, Strong, 
are but a few ot* the eminent names which appear on its 
roll. The journal of its proceedings is exceedingly 
unmethodical and unsatisfactory, and by reason of the lack 
of reporters at that time we have scarcely any knowledge 

16 



John Adams Architect in Chief. 

of the debates. The committee of thirty, to whom was 
referred the work of preparing a plan and form of govern- 
ment, intrusted this task to a sub-committee consisting of 
Bowdoin and the two Adamses ; who in turn committed the 
responsible labor to John Adams alone. His draught of 
the frame-work was substantially as a whole adopted by the 
sub-committee, and afterwards by the general committee 
slightly altered was propounded to the convention. The 
draught of Mr. Adams, compared with the form in which the 
constitution was, finally adopted, appears to have received 
several amendments by the convention, but the result of 
their labors was chiefly as he had blocked it out, and by 
every rightful title he must be declared the father of our 
constitution. Judge Lowell said in his eulogy on Bowdoin, 
that " it was owing to the hints which he occasionally gave, 
and the part which he took with the committee, 1 that some 
of the most admired sections in the constitution appeared ;" 
but in comparing John Adams's draught with the ultimate 
result one cannot easily discover any sufficient supply from 
other sources to derogate from his title of chief authorship. 
And we owe it to the truth of history to say, that whilst 
the galaxy of names already mentioned warrants the belief 
that the absence of any one of these delegates could not 
have endangered the prospect of a model constitutional 
government in Massachusetts, the chieftainship in that 
creative work must always be assigned to John Adams. 

And if he had left no other claim to the gratitude of the 
commonwealth, this alone would complete his title. As 
constitutionalist and publicist all other men of his day came 
at long interval behind him. Madison and Hamilton were 
a development of the ten years which followed the full 

17 



Centennial of the Mass. Constitution. 

manifestation of his powers. Beyond all his associates in 
mastery of the whole subject of government, grasping and 
applying the lessons of historical studies with a prehensile 
power at that time unprecedented on this continent, and 
adding to them the original conceptions of a mind of the 
highest order, he proved of all his contemporaries fittest for 
constitutional architecture. Having discerned live years 
before, in advance of everybody, the solution of inde- 
pendence in directing the colonies to establish local govern- 
ments, he became doctrinaire to the delegates at Phila- 
delphia. In the confusion and chaos of thought relating to 
these subjects which brooded over their minds his counsel 
was sought by delegates from North Carolina, from Virginia, 
from New Jersey, to each of whose delegations he furnished 
formulas of state government ; and when he came to the 
front in the preparation of a constitution for his own state, 
his mind was already stored for the emergency. His share 
in framing our own government, and his subsequent writings 
in defence of the general system adopted by the American 
states, in refutation of the theories of M. Turgot, this 
defence being published just in time to bear upon the ques- 
tion of the adoption of the Constitution of the United States, 
furnish sufficient excuse, if indeed excuse were needed, for 
his boastful declaration, found in the Warren corres- 
pondence recently published by the Historical Society : "I 
made a constitution for Massachusetts, which finally made 
the constitution of the United States." 

Under his direction the convention made a Declaration of 
Eights to precede the frame-work, almost wholly the work 
of his hand with the exception of the third article, which he 
did not attempt to perfect. These are the axioms which 

18 



_ 



The Value of Declaration of Rights, 

to give direction in future interpretations. Of the 
eleven original .states which made new constitutions, — for 
Rhode Island and Connecticut continued under their 
charters, the former until 1842, and the latter until 1818, — 
six adopted these Bills of Eights, and five left them out. 
That these declarations of general rights and liberties, most 
carefully and solemnly stated, and called Bills of Rights, are 
not to he regarded as exclusively suggestive of that period 
of transition from the old dispensation to the new, is shown 
by the fact that of the twenty-five new states admitted since 
the Revolution twenty-three have adopted these formularies ; 
and of the whole present number of thirty-eight states there 
are still hut five which have not accompanied their constitu- 
tions with something like a Bill of Rights. Upon this 
subject the people of Massachusetts were peculiarly sensi- 
tive, and the want of a Bill of Rights is believed to have 
had a leading influence in causing the rejection of the first 
proposed constitution. Our ancestors deemed it of first 
importance to make, with every solemnity, declaration of 
certain fixed principles of reason adapted to the sphere of 
government, certain abstract theories of natural or civil 
rights of man under the social compact, as safeguards neces- 
sary to immutable liberty. Other sections of the written 
instrument, other provisions of law, are the outworks ; these 
are the citadel. Secret approaches by violence, or corrup- 
tion, or other degeneracy, may span the moat and scale the 
outer walls of government, but the life of constitutional 
Liberty is here and will "not but by annihilating die." 
The conclusion of disputed principles, derived out of the 
usurpations and resistances of past centuries, is here regis- 
tered in a single paragraph. It is but a small body of 

19 



Centennial of the Mass. Constitution. 

words, mere "glittering generalities," but every word 
glitters as a flaming sword of warning and of ward to the 
generations. Good words are sreat things with a free 
people. Seven words, according to Parsons and Shaw and 
Gray, abolished slavery in Massachusetts. "These three 
words, [said Chatham to the lords], hallux liber homo, are 
worth all the classics.'' The journal of the convention of 
1780, barren as it is of anything dramatic, shows that the 
masters of the period resolved to follow after the Commons 
of 1(588, Avho gave the word of halt to the Lords in settling 
the crown upon a new dynasty until a bill of fundamental 
liberties had first been assented to. And the earliest 
motion of business in our own convention related to the 
Declaration. 

In all these formulas of rights adopted by the several 
states there is a general resemblance of substance and 
phraseology, but it by no means follows that the first in 
time was literally progenitor of the common affinity of 
thought which pervaded them all. Undoubtedly the Bill of 
Eights of Virginia, which was the first promulgated, was in 
several particulars largely copied into the others, and by its 
priority in time, as well as by its excellence for a model, it 
has laid three generations under tribute of admiration. It 
Avas almost solely the production of George Mason, one of 
the sainted heroes in the history of American constitutional 
government. Four times since that day Virginia has 
adopted new constitutions, but, excepting the addition of 
two or three articles made necessary in INTO as results of 
the civil Avar, the original work of Mason has stood and 
now stands, after the lapse of one hundred and five years. 

as it came from his hands. The Mas>achu>etts Declaration 

20 



Supreme Excellence of the 3Iass. Bill of Bights. 

is more extended and enunciates more in detail the investi- 
ture of the liberties of the citizen subject ; and though I 
must unavoidably be suspected of bias I am free to express 
the opinion that, as a whole, it is superior to every other 
similar form in existence, for its comprehensive projecting 
of the eclectic lessons of history over the future of. a new 
commonwealth, for its repeated inculcation of the duties 
of religion and education as the primary agencies of civilized 
states, and for its own simple and solid literature. With 
the exception of the third article it is the work of Mr. 
Adams, though in the convention it took on considerable 
changes in the grouping and the phraseology. It would be 
difficult to find among the English landmarks of right, in 
Magna Charta, in the Petition of Right, in the Habeas 
Corpus, in the Bill of Rights of 1688, any public or private 
security which, though here modified to fit the modern 
situation, is not as well stated in this all-comprising Declara- 
tion. In the annals of English legislation we often come 
upon the historian's phrase — "encroachment upon consti- 
tutional principles " — whilst, to learn what the principle is 
that was encroached upon, one must be well read in five 
centuries of kings and parliaments, and accept perhaps at 
last an interpretation from varying schools ; but in the 
simple and elemental aphorisms of the Massachusetts Bill of 
Rights there is for many of the questions of constitutional 
encroachment the assurance of speedy and indisputable 
solution. In the eleventh and twelfth articles, protecting 
personal liberty and property, which Mr. Hallam sums up 
as covering the two main rights of civil society, we have 
repeated the thirty-ninth and fortieth articles of the funda- 
mentals of Magna Charta with more circumstantial defini- 

21 



Centennial of the JIass. Constitution. 

tion, but not without some loss of the Gothic strength and 
grandeur of those ever-memorable sections. The thirtieth 
and concluding article, defining the separation and protec- 
tion of each one of the three departments of government 
from the other two, which was reduced to its present form 
by changing Mr. Adams's grouping, has not its superior in 
the terminology of modern constitutions ; and its success in 
expressing the leading thought he aimed to impress upon 
our constitution, is one of the choice felicities of the whole 
body of the Declaration. Mr. Rums Choate speaking 
of this clause once said: "I never read without a thrill 
of sublime emotion the concluding words of the Bill of 
Rights, — 'to the end this may he a government of laws, 
and not of men.' " "With the change of only a single 
article the entire thirty sections have stood the test of a 
hundred years, and they still challenge the same tender 
observance and care from the present generation, which 
Lord Coke claimed for the best chapter of Magna Charts : 
" As the gold refiner will not out of the dust, shreds, or 
shreds of gold. let pass the least crumb, in respect of the 
excellency of the metal, so ought not the reader to pass any 
syllable of this law, in respect of the excellency of the 
matter." 

There are some half-dozen of these articles, promulgating 
the supreme and fundamental principles which form the 
ground-work of free government, which are substantially 
copies from the Declarations of Virginia and Pennsylvania. 
But since Pennsylvania copied after Virginia, to the last 
mentioned must be accorded the historical honors. John 
Adams was perfectly familiar with every circumstance and 
detail of the history of the proceedings in both of those 

22 



Assertion of the Equality of Men. 

states. He himself said that the Bill of Rights of Pennsyl- 
vania was taken almost verbatim from that of Virginia, 
which was made and published several weeks before ; and 
in conversation with M. Marbois in June, 1779, just before 
he came home to find himself elected a delegate to our 
convention, he gave the names of the four men who framed 
the Pennsylvania Declaration. Much has been said and 
written in our local historical circles about the authorship 
of the Massachusetts famous first article, "All men are 
born free and equal," &c, but it would seem the product of 
all these inquiries and speculations must lie at last in the 
simple conclusion, that this section has come to us in the 
sole personal draught of Mr. Adams, and that he in turn 
had before him the same in the original as it came from 
Virginia. This is one of the conclusions established by 
Mr. Charles Deane in a recent paper published by the 
'Historical Society. The record ought to be conclusive. 
But it would be quite unphilosophical to suppose that the 
primordial conception of the idea of the congenital freedom 
and equality of men belongs exclusively to any one of these 
forefathers. Not to George Mason, nor to Thomas Jeffer- 
son, nor to John Adams, do we owe an inheritance of this 
thought. It was in the air of that day. It is said there are 
climates of opinion ; and I may add there are epidemics of 
phrase. From time far back there have been periods of 
the public consciousness of the rights of man, and it would 
be difficult to find a time when human nature has not been 
conscious of its rights ; and these rights have found expres- 
sion in one epoch only to be paraphrased after long interval 
in a following epoch. The central thought of the twelfth 
article of the Massachusetts Bill of Bights, expressed by 

23 



Centennial of the Mass. Constitution. 

Mr. Adams in 1779, may l>e seen as well expressed by 
Nathaniel Ward in the first article of the Body of Liberties 
in 1641, and it was set forthwith a strength superior to 
both in the thirty-ninth article of Magna Chatta of 1215. 
These are not inherited rights ; they come to ns from our 
Creator. As to concrete form they may he traced to an 
origin among the customs of the English people and the 
English barons, and as for their phraseology in expression 
it is a matter rather of curiosity than of utility whether we 
take rest from our inquiries in Locke or Sidney, in Fihner 
or Bellarmine. 

There is a curious coincidence in the conduct of George 
Mason and John Adams of their respective Bills of Rights 
relating to the subject of religion, and in the public results 
which flowed from that conduct. Mr. Mason reported, in 
his sixteenth article, toleration for all forms of religion, 
when Episcopacy was, so to speak, the state religion of 
Virginia. The youthful James Madison, then making the 
first step in a brilliant and beneficent career, contested the 
language and obtained an amendment predicated on the 
natural right of all men to the free exercise of religion, 
excluding the idea of toleration. This action resulted in 
the speedy legislation which put an end to the advantage of 
any one sect of christians over another, and left the whole 
domain of religious thought in Virginia without a trace of 
compulsion or restraint. Mr. Adams assented to a compul- 
sory support of religious worship, reported in the third 
article of our Declaration, when Congregationalism was. so 
to speak, the state religion of Massachusetts, though he dis- 
claimed personal responsibility for the article : and this 
article, subsequently made even more narrow and stringent 

24 



A Balanced Frame-Work of Government. 

by the convention, enforced a religious compulsion upon the 
people of Massachusetts which it took half a century after- 
wards to repeal. 

Following the Declaration of Eights came the plan or 
frame of government. On this field Mr. Adams had the 
opportunity to apply, in clear and enduring formulary, his 
matured conceptions of a government fit for a free republic, 
which he summarized in the provision for three organs of 
governing power, a legislature, an executive, and a 
judiciary. Five years earlier, in Ms conferences with pub- 
lic men at Philadelphia, he had met with a quite common 
preference for one sole legislative assembly, which should 
absorb all functions of government, itself legislating and 
itself also selecting the executive and judicial agencies. 
This principle was adopted by Pennsylvania in its constitu- 
tion of 177(5, which remained in force till 1790, after the 
constitution of the United States had been ratified ; and a 
similar form of government was created by Georgia in 1777 
and continued until 1789. Though no other of the thirteen 
states accepted this theory, it has been made evident that in 
1775 and 1776 it had a strong support in high quarters. 
Dr. Franklin favored it, and according to the authority of 
Mr. Adams, his colleagues, Cushing, Paine and Samuel 
Adams, favored it, though no evidence appears that they 
adhered to such opinion when called to act in the conven- 
tion of 1780. He distinctly states that, when the subject 
of recommending the setting up of state governments was 
before Congress in 1775, it seemed to him most natural for 
that body to agree upon a form of state government and 
send it out to all the states for their adoption : but, he says, 

"I dared not make such a motion because I knew that 

25 



Centennial of the Mass. Constitution. 

every one of my friends, and all of those who were most 
zealous for assuming governments, had at that time no idea 
of any other government but a contemptible legislature in 

one assembly, with committees for executive magistrates 

and judges." This was very properly termed an unbalanced 
government, and such a theory, whether fresh from France 
or acclimated here, he opposed with great vigor in his reply 
to the disquisitions of M. Turgot. He would set up the 
three bulwarks of the English Constitution, king, lords, 
and commons, modified in the form of governor, assembly, 
and senate, adding an isolated and absolutely independent 
judiciary, without the British imperfection which then made 
the upper house a depositary of judicial appeal. As far back 
as January, 177(>, five months before the action of Virginia, 
six months before the action of Pennsylvania, and before 
any one of the colonies had taken up the subject for 
deliberation, when invited by the colonial legislature of 
North Carolina to give them his views on government, he 
unfolded his system in a letter to John Penn in language 
which he afterwards repeated in flaming the constitution of 
Massachusetts : the same separation of the executive from 
the legislature, the same balance of dual legislative house-, 
the same great barriers thrown up around the judiciary. 
The legal literature of this country does not furnish a more 
impressive statement of the necessity of an elevated judicial 
organ in the government, of the method for obtaining it, 
and of the guards which should surround and protect it. than 
the following passage which 1 quote at length from this let- 
ter as a motto for the people of the state in all time to come : 

"The stability of government, in all its branches, the 
morals of the people, and every other blessing of society 

26 



A Consecrated Judiciary. 

and .social institutions, depend so much upon an able and 
impartial administration of justice, that the judicial power 
should be separated from the legislative and executive, and 
independent upon both ; the judges should be men of 
experience in the laws, of exemplary morals, invincible 
patience, unruffled calmness, and indefatigable application ; 
their minds should not be distracted with complicated, 
jarring interests ; they should not be dependent on any man 
or body of men ; they should lean to none, be subservient 
to none, nor more complaisant to one than another. To 
this end, they should hold estates for life in their offices ; 
or, in other words, their commissions should be during 
good behavior, and their salaries ascertained and established 
by law." 

It is not singular that North Carolina, to which state 
these sentiments were addressed, in its first constitution, in 
1776, ordered the appointment of its higher judges to be 
made during good behavior, and that this provision con- 
tinued undisturbed through ninety-two years, down to the 
convention of 1868, which convened under a call issued by 
a Major-General of the army of the United States. It is 
not singular that these sentiments were accepted in a similar 
provision of the first constitutions of nine of the eleven 
states which framed new governments, though many of 
them have since taken a wide departure from the principle. 
And least of all is it singular that the same sentiments 
were registered in the organic law of our own common- 
wealth, which has enjoyed the fruitage of them through .a 
whole century. The philosophy of the master was first 
directed to this subject when the British parliament pro- 
vided that the salaries of the colonial judges of Massachu- 
setts might be paid by the king, and he then aroused the 

27 



Centennial of the Mass. Constitution. 

attention of the colony to scent the first approach of 
encroachment upon the independence of the judicial- v. 

The frame-work of the constitution as it came from the 
hands of the committee of thirty underwent but few changes 
in the substance. Mr. Adams advocated investing the ex- 
ecutive with the power of an absolute and unalterable nega- 
tive upon the laws, which was changed to a qualified veto by 
the convention. Of the eleven state constitutions originally 
adopted, Massachusetts alone accepted this doctrine in its 
modern form ; New York lodging the power in a joint 
council of the Governor, Chancellor and two Supreme 
Judges, South Carolina sanctioning it for but two years, 
Avhile all the other states refused admittance to the princi- 
ple. Mr. Adams, having- been called away from the con- 
vention upon his mission abroad, was not in attendance when 
his form of absolute executive power of veto was changed 
to the qualified form, but he wrote from Amsterdam on the 
second of October, 1780, that the Massachusetts constitu- 
tion, then publishing in the public papers of Europe, was 
received with general favor, and that this particular pro- 
vision met with European approval and received also his 
own assent. The same measure of the veto power was 
afterwards incorporated into the constitution of the United 
States, and though its exercise in periods of party excite- 
ment has been frequently assailed, and the principle itself 
has been threatened with repeal, it has made its way into 
most of the state governments and may now lie regarded as 
a part of the American system. Whilst this state was 
almost alone in its original adoption, the example has been 
followed by other states, until now only three ot' the old 
thirteen are without it, and of the whole number of states 

28 






Power lodged in the Executive. 

thirty have incorporated it in their governments, leaving 
but eight that disown it. For illustrating the desire of our 
ancestors for a government clothing the governor with full 
and independent powers, I may mention that in many of 
the towns the people voted against accepting those sections 
which seemed to them deficient in the strong executive pre- 
rogatives necessary for the time. The appointment of 
militia officers, lodged by the committee's report in the 
Executive, was by the convention changed to election by 
the companies or otherwise, and though deemed an import- 
ant change by the author this has caused no trouble in 
practical operation. The material alterations from the 
committee's report were so few and inconsiderable that I 
will not follow out the topic. 

In tilling up the outline of the framework to attain the 
comprehensive purpose of three grand, distinctive, and 
coordinate organs of governing sovereignty, balancing and 
checking each other, yet protecting and serving each other, 
the analogies of the English system and the colonial cus- 
toms and laws of a century and a half, were retained and 
modified by the access of new ideas. The king, the lords 
and commons, became our Governor, Senate and House of 
Representatives, modified by our situation, but not essen- 
tially changed in elementary principles. Great Britain has 
been termed a republic with a permanent executive, of which 
last feature our system was left clear by universal consent. 
The British judicial life tenure, and the removal of judges 
by address, were retained as they had come from William 
and Mary. The confusion of legislative, executive and 
judicial functions involved in the lord chancellor being a 
politician of the cabinet, and in the lords being a court of 

29 



Centennial of the Mass. Constitution. 

appeal, were wisely rejected from our system ; the Gov- 
ernor's council bore analogy to the privy council of Eng- 
land, but was freed at once from the incompatibilities which 
had grown up under the charter by which executive and 
legislative prerogatives were illogically mingled ; the ex- 
pression of all legislative power under the term of ''the 
General Court*" was old as Winthrop's administration 
under the charter; the choice of a house of representatives 
was prescriptive from the earliest days of the colony in 
1632, when the levy of taxes by the magistrates led to 
resistance; the Senate came from the ancient Assistants, 
being now stripped of executive and judicial authority : the 
check of the two houses upon each other dates backward 
to the civil strife which arose from the impounding of the 
colonial stray : the right of town representation in the 
assembly had its origin in that early time when but eight 
towns lay about Boston, as a crescent tilling with the 
destiny of the future commonwealth : the two sessions of 
the general court were descended from the year 1636 : the 
requirement of local residence of the representative came 
of the conduct of some recusant Bostonians who, in Phipps's 
government in 1694, held seats for country towns, after the 
manner of the British parliament, to be rid of whom the 
Governor's party passed the resident act, now become the 
general practice of America : the restriction of suffrage 
was an English and colonial inheritance ; compulsory taxa- 
tion for compulsory religious worship lingered longest and 
last of the relics of the puritan period, in which the idea oi 
a perfect church and the idea of a perfect commonwealth 
were inseparable. I will not pursue the thought of the 

sources of derivative supply to the constitution, since I 

30 



Sources of Siqjplt/ to the Constitution. 

shall have to touch upon some of them in speaking of the 
changes which the century has made in this venerable 
instrument ; but one subject, to which was assigned pre- 
eminent importance, cannot be passed over by any citizen 
who seeks to find in government one of the chief fountains 
of public virtue and stability. 

The second section of chapter fifth, relating to "the 
encouragement of literature, &c," is a distinguishing; feature 
of the Massachusetts constitution. The earlier provisions 
in -the governments of other states for education were 
meagre and unworthy. In most of them there was no 
injunction whatever relating to this subject, and in the few 
which noticed the matter at all, with a single exception, the 
only inculcation of the kind was degraded by the remarka- 
ble precaution of requiring "instruction of youth at low 
prices," a phrase used in at least three of these constitu- 
tions. The treatment given by the following section to this 
duty of government raises the subject to a plane of elevation 
fitly occupied by a state which established a university and 
a system of public schools in the infancy of its settlement. 
It has stood through a -century without the change of a 
syllable, and it deserves to be cited at length at this starting 
point of the second century under the constitution : 

"Wisdom and knowledge, as well as virtue, diffused 
generally among the body of the people, being necessary 
for the preservation of their rights and liberties, and as 
these depend on spreading the opportunities and advantages 
of education in the various parts of the country, and among 
the different orders of the people, it shall be the duty of 
legislators and magistrates, in all future periods of this 
commonwealth, to cherish the interests of literature and the 
sciences, and all seminaries of them ; especially the Univer- 

31 



Centennial of the Mass. Constitution. 

sity at Cambridge, public schools and grammar schools in 
the towns ; to encourage private societies- and public institu- 
tions, rewards and immunities for the promotion of agricul- 
ture, arts, sciences, commerce, trades, manufactures, and a 
natural history of the country ; to countenance and incul- 
cate the principles of humanity and general benevolence, 
public and private charity, industry and frugality, honesty 
and punctuality in their dealings, sincerity, good humor, 
and all social affections and 2,-enerous sentiments among the 
people." 

The incorporation into the constitution of this concise 
and unique summary of the higher obligations of govern- 
ment, covering the whole domain of general and special 
education, of ethical and social sentiment, of all the 
humanities and benignities necessary to the best attainable 
social condition, was many steps in advance of every con- 
stitutional provision hitherto known, and was original and 
without a precedent. This episode in constitutional pre- 
cepts at once made a deep impression upon the public mind. 
In their answer to the first message of (jov. Hancock the 
two houses of the legislature quoted largely from this now 
celebrated section and gave assurance, for themselves and 
their successors, of a faithful practice of the precepts. I 
need not say how truly legislation has followed this organic 
instruction, in grants from the public domain and from the 
treasury to colleges, academies, and the free schools through 
three generations : in developing the capacity of the soil ; 
in building up a system of public charities and reformatories 
of which the outlines for models are visited from afar : nor 
can I fail in my observation to trace back to this source of 
inspiration somewhat of the endurance, patience and en- 
couragement which has sustained a Howe, a Mann, a Scars. 

32 



A Celebrated Chapter. 

all our high workmen and benefactors in the interests of 
philanthropy and education. The unfolding of that narra- 
tive would be too large for the present occasion. Mr. 
Charles Francis Adams, in his fourth volume of the works 
of his ancestor, has made public the curious private history 
of this epitome of the moral duties of government. The 
author was in Europe when this section was voted on by 
the convention, and he felt apprehensive lest the injunction 
to cultivate ' « good humor " among the people might be 
struck out by the delegates. It happened singularly enough 
that this section was copied into the constitution of New 
Hampshire, adopted in 1784, and again in its frame of gov- 
ernment of 1792, where it now stands, in each instance 
with the "good humor" left out. The author was also 
solicitous lest the "natural history" might be rejected by 
the convention. His own amusing 1 account of the origin of 
this phrase of constitutional duty, traceable to the interest 
he took in a certain collection of American birds and insects 
he visited at Norwalk, Connecticut, on his journeys to and 
from the Continental Congress, and afterwards in similar 
collections in Paris, rises to the height of forecast and 
prophecy when considered with the illustrations of our sub- 
sequent history. The collection at Norwalk was suggestive 
of results which he probably then little apprehended, for in 
carrying out this provision of the constitution Massachu- 
setts has passed beyond all other American states in devel- 
oping this department of "natural history." To illustrate 
this I need only mention, among the works published under 
authority of the legislature, the reports on the fishes, rep- 
tiles and birds of Massachusetts, the first two written by 
Dr. Storer, and the last by W. B. O. Peabody ; the reports 

33 






Centennial of the Mass. Constitution. 

on our herbaceous plants and quadrupeds, the former by 
Chester Dewey, the latter by Ebenezer Emmons ; the report 
on insects injurious to vegetation by Dr. Hams ; the report 
on our invertebrata by Gould and Binney ; the great work 
of geological survey by Hitchcock ; a report on the trees 
and shrubs natural to our forests, by George B. Emerson ; 
the munificent endowments by the state of the Society of 
Natural History and the Institute of Technology ; and last, 
but by no means least, its generous contribution to the 



broad foundation and subsequent support of the Museum of 
Comparative Zoology at Cambridge, in which the common- 
wealth may be said to have entered into partnership of fame 
with the illustrious scientist Avhose name will forever be 
associated with the institution. 

On the second of March, 1780, the finishing touches 
having been put to the constitution, it was finally adopted 
by the convention and ordered to be submitted to the 
people for their judgment, and the delegates adjourned to 
meet in the Brattle street meeting-house on the seventh of 
June, to ascertain and declare the result. Although the 
instrument made the suffrage dependent on a property 
qualification in the future elections of state officers, yet it 
had been provided that in the vote upon the adoption 
of the constitution itself all free male inhabitants, twenty- 
one years old, might cast their ballot. Upon re-assembling 
and counting the votes upon all the propositions the dele- 
gates declared the entire constitution to have been adopted. 
The form of government of Massachusetts, under which its 
present population, rapidly nearing two million souls, enjoy 
a degree of comfort and contentment not surpasssd by the 

same number elsewhere on the globe, was "ordained by the 

34 



The Government Organized. 

people" — using the language of John Quincy Adams — "that 
is to say, by more than two-thirds of about fifteen thousand 
persons who voted upon it, out of a population of three 
hundred and fifty thousand, or one vote for every thirty-five 
souls." On the twenty-fifth day of October, the first 
elected chief magistrate, Governor Hancock, took the oath 
of office in the presence of the two houses of the legislature 
in the old state house, proclamation being made from the 
balcony by the Secretary and repeated by the Sheriff" of 
Suffolk ; and we are assured that "joy was diffused through 
the countenances of the citizens," that three companies 
paraded State street, that volleys wei'e fired, and salvos of 
cannon from the castle and Fort Hill and on board the ship- 
ping in the harbor. At the services which followed in the 
" old brick meeting-house" Dr. Cooper preached a sermon 
from Jeremiah : "And their consTesfation shall be estab- 
lished before me ; and their nobles shall be of themselves ; 
and their Governor shall proceed from the midst of them." 
After which the executive and the members of the two 
houses were escorted to Faneuil Hall, in which a feast with 
thirteen toasts completed the simple and frugal ceremonies 
of inaugurating a new government and a new age for the 
commonwealth of Massachusetts. 

During the century which has since elapsed the three 
branches of the government and the people themselves have 
in the main acted in good faith towards their form of gov- 
ernment, and the steadiness and intelligence which have 
marked these mutual relations reflects equal honor upon 
the wise provisions of the constitution and upon the charac- 
ter of the commonwealth, which has thus far measured to it 
the whole duration of its civil life. There has been no 

35 



Centennial of the Mass. Constitution. 

appreciable abandoning or dropping below the criterion 
established by the founders, and now entering the second 
century it is permitted us to say that the original spirit of 
the declaration and frame-work has constantly inspired the 
three practical functions of its legislation, interpretation and 
execution. Very early after this government went into 
operation an occasion arose to test the fidelity of its admin- 
istration to the Declaration of Rights. Under the supreme 
clause of the first article of the Bill of Eights slavery was 
abolished on the first opportunity. There has been at dif- 
ferent times much inquiry in relation to the share this first 
article bore in the decision of the case in Worcester County 
which, in 1783, put an end to slavery in this common- 
wealth. On the one side it has been said that the words 
"all men are born free and equal,' 9 were one of the phrases 
of the period, having no more relation to slavery in Massa- 
chusetts than the same language bore to slavery in Virginia, 
whose bill of rights first introduced it there. And singu- 
larly it occurs that this hypothesis receives support from a 
letter upon the subject of slavery, written by John Adams 
himself to Dr. Belknap, March 21. 1795, recently pub- 
lished in the Belknap Papers by the Historical Society, in 
which the father of the constitution says of slavery : — "It 
is a subject to which I have never given any particular 
attention." There being no judicial reports of the time in 
which the Worcester case was decided, the question has 
been held to some extent open as to the direct and tactual 
bearing this first article may have had upon that decision. 
Chief Justice Parsons, himself a member of the consti- 
tutional convention, declared in 1808. that " in the first 
action involving the right of the master, which came before 

36 



The Bill of Rights Abolishes Slavery. 

the Supreme Court after the establishment of the constitu- 
tion, the judges declared that by virtue of the first article 
of the declaration of rights slavery in this state was no 
more." Chief Justice Shaw, in a subsequent case, seemed 
to doubt how far the adoption of the English opinion in 
Somerset's case, and the first article of our declaration, may 
have respectively shared in the decision referred to. But I 
think great weight is due to the suggestion of the present 
learned Cln'ef Justice Gray, contained in a paper recently 
presented to the Historical Society, reminding us that Chief 
Justice Cushing and Associate Justices Sargeant, Sewall, 
Sullivan and Sumner, sitting in the case, and Lincoln and 
Strong of counsel, and Paine for the government, were all 
members of the convention of 1780, which adopted, and all 
but three members of the committee of thirty which 
reported, this article. It appears to me, therefore, that 
however difficult it may be to determine how far the inten- 
tion of the trainers of the article related to this particular 
question, the weight of reason and authority is decisively 
in favor of the conclusion that the judges decreed the aboli- 
tion of slavery in Massachusetts as one of the effects of the 
Bill of Rights. Judicial interpretation of the constitutional 
effect of an article must be final, though the field is never 
closed to archaeological curiosity as to the intention of its 
framers. And whilst the court may have justly given to 
this article an interpretation lying beyond the thought of its 
framers, so it is still competent for the curious searcher to 
maintain with Dr. Belknap that it was public opinion which 
abolished slavery in Massachusetts. 

The sense of constitutional responsibility of administra- 
tion was soon brought under the most severe ordeal of our 

37 



Centennial of the Mass. Constitution. 

history in the Shays rebellion, which occurred in 1786 and 
1787. Both the beginning and the suppression of this 
memorable revolt may, in one sense, be ascribed to the lofty 
integrity of the early magistrates and their resolve to hold the 
government and the people in full accord with the standard 
of the trainers. The discontent which ended in arms grew 
up out of the exhaustion of finance and hope, public and 
private, and out of the vast debt, state and national, which 
were consequent upon the war; and it combined all those 
elements of popular sympathy which spring from a depre- 
ciated currency, from wide-spread poverty and despair. 
It has seemed to me quite likely that a timid, hesitating 
policy on the part of the administration, a little lowering of 
the constitutional tone, a little yielding and weakness and 
false promise, might have put oft' perhaps indefinitely the 
shock. But the wise constitutionalists of that day saw that 
weakness in such a crisis would lead to fatal degeneracy. 
At a time when depression was at its worst, in 1785, Gov- 
ernor Bowdoin, who had presided over the constitutional 
convention and borne a responsible share in its great work, 
on taking the chair of state uttered no uncertain sound, but 
insisted upon such measures of taxation as should maintain 
unimpaired the public credit. In his address upon the life 
of this magistrate Mr. W nithrop has not too strongly illus- 
trated the service he rendered by impressing on the legisla- 
ture and the people the benefits of keeping faith with the 
constitution by practicing the highest public morals in the 
darkest period. The same spirit spread to the other func- 
tionaries of administration. There is no passage in the 
annals of the state more dramatic and sublime than those 
which have recorded the firmness of the judges in that time 

38 



Early Fidelity to the Constitution. 

of threatened anarch}', in whieh a Justice, who had served 
with honor under a high commission in the war of the 
nation, now crowned that distinction by upholding the 
constitution and laws in the presence of armed insurgents. 
After the interval of nearly a century it behooves us to 
recall with gratitude the conduct of these men in giving to 
the first operations of the government a character which has 
not been lost in the lapse of years. Their determination, 
their tone and temper, passed into the next era, and though 
they personally suffered from temporary disparagement and 
obloquy, the force of their example survived to the next 
generation and even to our own time. The commonwealth 
which under Bowdoin in 1786-7, in behalf of a public credit 
which should be perpetual, was reduced to the necessity of 
borrowing money of citizens of Boston to enable it to 
defend the constitution against open insurrection, afterwards 
still proved its steadfastness to that early lesson, when, 
seventy-seven years later, in the midst of flagrant national 
war, it paid its principal and interest in gold, whilst depre- 
ciation reigned in many other quarters supreme. The 
example of good faith to the constitution, taught by the 
fathers of the government, has survived the century. 

The convention of 1780 provided that after the expiration 
of fifteen years, in 1795, it should be submitted to the 
people to say whether they desired to call another conven- 
tion for revising the form of government, and that if two- 
thirds of those voting on the question should respond in the 
affirmative, such convention should be chosen and convened. 
Acting in conformity to this provision the people decided 
in 1795 against the proposition, and through a period of 

forty years from its establishment the constitution remained 

39 






Centennial of the Mass. Constitution. 

without any alteration and without any provision for its 
future. revision. In 1820, by reason of the district of Maine 
having been set off as an independent state, a constitutional 
convention was duly ordered by the legislature and the 
people, and assembled at the state house on the fifteenth of 
November. This was one of the most celebrated bodies of 
men which has ever assembled in this commonwealth, alike 
for the standing of the delegates and the ability and decorum 
of the debates. The list of its members comprised such 
names as John Adams and Daniel Webster, Story and 
Parker, Shaw and Wilde, Lincoln and Hoar, Jackson and 
Prescott, Quincy and Blake, Savage and Hubbard, Salton- 
stall and Hale, and many others then or afterwards eminent 
in the state and nation. The journal of this convention is 
among the things lost, and the commonwealth will ever be 
indebted to Mr. Nathan Hale for a complete record of its 
proceedings and discussions, made up at the time, comprised 
in a volume of nearly seven hundred pages of inestimable 
value. Mr. Adams was chosen President bat in conse- 
quence of the infirmities of age, he being then in his eighty- 
sixth year, he declined the position, and Chief Justice 
Parker was elected to the office. This convention continued 
in session until the ninth of January. In perusing the 
report of these remarkable discussions one can scarcely fail 
to observe, that if supremacy or superiority should be 
assigned to any one among so many civil masters, the 
convention itself appears from time to time to have set that 
distinction upon Mr. Webster. He was then thirty -eight 
years old, and then for the first time he came foremost to 
the front in Massachusetts. It was during the sessions of 
this body that he pronounced his address at Plymouth 

40 






Tlie Convention of 1820. 

which placed him before all others for a kind of eloquence 
which bears within itself the assurance of durability. One 
other convention assembled in 1853 to consider amend- 
ments of the constitution, of which the proceedings and 
discussions were reported in three immense volumes, but 
as the result of its deliberations was altogether rejected by 
the people it does not come properly under the survey of 
this paper. Any careful reader of the debates of these two 
public bodies of 1820 and 1853, will readily perceive that 
in the former it appears to have been difficult to induce the 
members to accept any change in the organic law, whilst in 
the latter it appears to have been difficult to prevent the 
acceptance of any alteration. The one deliberated at a time 
in which no party strife existed, whilst the other was itself 
in some degree the outgrowth of party strife, and its 
deliberations reflected strongly the party politics of the day. 
In the last sixty years twenty-seven amendments have 
been incorporated into the constitution, many of which may 
be grouped together in this paper for simplicity and brevity 
of statement. Several of these require only mention Avith- 
out comment. Such are the following, numbering them in 
the order of their adoption : First, a bill or resolve, if not 
signed by the Governor nor returned with his veto, is not 
to become a law if the legislature adjourn within five days 
after the same has been laid before him ; second, the legisla- 
ture is empowered to constitute city governments in towns 
having twelve thousand inhabitants ; fourth, the appoint- 
ment of notaries public is transferred from the legislature 
to the governor ; fifth, minors enrolled in the militia are 
clothed with the right to vote in election of company 

officers ; eighth, certain officers of the state and of the 

41 



Centennial of the Mass. Constitution. 

United States are excluded from executive and legislative 
office in this commomvealth ; twenty-seventh, instructors of 
Harvard College are made eligible to the legislature.; the 
twenty-third, limiting the enfranchisement of certain natur- 
alized persons of foreign birth, is annulled by the twenty- 
sixth. These eight articles have failed to impress the 
public mind as much affecting any grave principles of the 
government. Articles sixth and seventh greatly reduce and 
simplify the oath of allegiance formerly taken by civil and 
military officers of the state, and rescind the declaration 
originally required of the executive and legislative officers 
of their belief in the Christian religion. The remaining 
articles of amendment bear a more important and apprecia- 
ble relation to the original frame of the constitution. 

The third amendment framed by the convention of 1820, 
and the twentieth adopted in 1857, made a radical change in 
the qualifications for voting at elections. The original 
constitution required on the part of the voter a freehold 
estate within the commonwealth of the annual income of 
three pounds, or any estate of the value of sixty pounds. 
This restriction of the suffrage to the possession of property 
was in some measure an inheritance of the people of this 
country, though greatly reduced from the extent prevailing 
in England, and in their original constitutions I believe all 
the states except three had similar requirements of freehold 
or other property. This limitation continued in Massachu- 
setts forty years, and in the social condition of that period 
it worked no especial hardship. There were here a 
yeomanry at that time, and a spirit of simplicity and con- 
tentment. But the change of industries and activities inci- 
dent to the advance of a more commercial age made the 

42 



Amendments Since Adopted. 

restriction difficult of application, and it was stated in the 
convention of 1820 that it had in practice become to some 
extent a farce and a mockery not conducive to public 
honesty. Accordingly in conformity to the whole drift of 
our time suffrage was thrown open to all male inhabitants 
of twenty-one years, by whom or for whom a state or 
county tax has been paid within two years in the state, 
having resided in the state one year and in the town six 
months, paupers and persons under guardianship excepted. 
The other change in the qualification for voting was made 
by the twentieth amendment in 1859, which excludes from 
the right of suffrage and of election to office every person 
who is not able to read the constitution of the state in the 
English language and to write his name. Thus it was 
the purpose of the one amendment to enlarge suffrage as 
to the possession of property qualification, and of the other 
amendment to bring it under a new restriction as to the 
possession of intelligence. This last article has now been 
in existence more than twenty years, and whatever doubts 
may be entertained on account of its limited and artificial 
method of application, it seems to be regarded as the settled 
policy of the state. 

These restrictions of the right of suffrage are frequently 
criticised in party discussions in the Congress of the United 
States, but rarely with an intelligent understanding of their 
limited effects in practice, and still more rarely in a spirit 
of justice towards the motive and purpose which induced 
their adoption. But more strange still are the strictures 
sometimes published by theoretical writers here at home in 
relation to the great reduction which has been made in the 
property qualification. It has been spoken of by pessimist 

43 



Centennial of the Mass. Constitution. 

writers as equivalent to universal suffrage, and our Systran 
of popular elections under this rule has been pronounced a 
failure. And this is said in Massachusetts at a time in 
which no man of observation and candor can fail to perceive 
that from its legislation and from its judicature the spirit of 
intelligent reform and progress, of equity and justice, of 
liberty regulated by law and law tempered by liberty, is 
reflected in at least as clear and broad light as at any former 
period; at a time in which, as we believe, all the character- 
istics of an advanced civilized state, so happily grouped in 
John Adams's memorable Fifth Chapter of seventeen 
hundred and eighty, are here more generally and securely 
enjoyed than in any other quarter. 

There is a group of ten articles of amendment, adopted 
by the people at different times, of which some were after- 
wards annulled by the adoption of others, all of which may 
be briefly stated by their subjects, which are nearly related. 
These articles are the tenth, twelfth, thirteenth, fifteenth, 
sixteenth, seventeenth, twenty-first, twenty-second, twenty- 
fourth, and twenty-fifth, and it is only necessary to state the 
effect of them. 1. They have changed the political year 
from May to January, and have established one annual ses- 
sion of the legislature instead of two, and have transferred 
the time of the state election to the month of November. 
2. The} r have fixed the number of councillors as eight, and 
have constituted the same number of districts in which these 
officers are severally to be chosen by the people from their 
own number. 3. The number of Senators has been estab- 
lished as forty, and the commonwealth is divided up into the 
same number of senatorial districts, determined by the num- 
ber of legal voters, who shall respectively elect from their 

44 



Change in the Basis of Suffrage. 

own number the forty senators, thus doing away with the 
former apportionment to the counties as senatorial districts. 
By these alterations also have been swept away the original 
restriction of election as senator to persons having a free- 
hold of three hundred pounds, or personal estate of six 
hundred pounds in value, and the restriction of eligibility 
to the house of representatives to persons having a freehold 
of one hundred pounds, or ratable estate of two hundred 
pounds. And furthermore, under these amendments, the 
old provision of property basis for the senate, that is to say, 
of apportioning to the senatorial districts their respective 
number of senators according to the proportion of public 
taxes paid by said districts respectively, disappeared in 
1840. The original provision, placing the senate basis on 
property, was debated in the convention of 1820, with per- 
haps greater vigor and eloquence than any other question, 
the late Governor Lincoln being in the lead of the cham- 
pions on the side of the popular right, and Mr. Webster 
defending the property side by most elaborate reasoning, 
aided by Judge Story in mingled argument and declama- 
tion, and by many others who shared in the discussion. 
The old time reasoning, that the Senate was the citadel of 
property and the House of popular rights, was worked and 
almost overworked in the discussion, and prevailed with the 
delegates. Strangely enough, this debate, which was per- 
haps the ablest of all the debates in that convention of 
men so eminent, could not now easily be made palpable to 
the appreciation of a tenth part of the three hundred thous- 
and voters in the commonwealth, and was so far forgotten 
only twenty years afterwards, that an amendment basing the 
apportionment of senators upon the simple number of citi- 



Centennial of the Mass. Constitution. 

zens qualified to vote, was accepted by tbe people as one of 
the ripe fruits of modern experience. The only state whose 
constitution contained this, or any similar provision, was 
New Hampshire, in which, unless annulled within the last 
four years, it still remains unchanged, but to what extent it 
is earned out in practice, a stranger may not be presumed 
to know. 4. These articles have one after another entirely 
altered the number and apportionment of representatives to 
the general court, and the last article adopted in 1857, has 
reduced the house of representatives to two hundred and 
forty members, and has provided for the apportionment in 
representative districts, abolishing the system of town or 
corporation representation, which had existed two hundred 
and twenty years. No other question in our annals has 
been so frequently and fully discussed as this, and the 
debates upon it if compiled would fill many ponderous vol- 
umes. Representation by" towns was one of the earliest 
things established in the first days of the colony, and as fin- 
back as 1641, this right was registered as the sixty-second 
fundamental in the constitutional code of the Body of Liber- 
ties. The history of the subject illustrates the cumulative 
force of custom and the difficulty of overcoming traditional 
practice, even after it has become incongruous "and imprac- 
ticable. If, in the days of Winthrop's administration, any 
other than the town system of representation had been fixed 
upon, it may be presumed there might have been a less 
strenuous adherence to it : but the long enjoyment ot' the 
right by the several small and homogeneous communities in 
the townships endeared it to them as a thing almost sacred. 
The customs, the consuetudines of the Anglo-Saxon race 
have for six centuries been among the things least sus- 

46 



Education Secure from Sectarianism. 

ceptible of change. The method of election by districts, 
Avhich has now been in use for twenty-four years, may he 
deemed one of those steps of reform which are rarely 
reversed, and it is in accord with the principle adopted by 
all of the states of this union, except the five other states 
of New England which still adhere substantially to the tra- 
ditions of the period of the early settlements. 6. By the 
same group of amendments the secretary, treasurer, audi- 
tor, and attorney general, usually termed executive officers 
on the ticket with the Governor and Lieutenant-Governor, 
are made annually elective by the whole "people from their 
own number. 

By the fourteenth amendment, 1855, in the election of all 
civil officers of the state, provided for by the constitution, 
the rule of plurality of votes has taken the place of that of 
a majority. The general degree, not merely of acquiescence 
but of satisfaction, which has been manifested for twenty- 
five years under the operation of this provision, adds 
another to the hundreds of illustrations of the general 
truth, that whenever in administering government two sys- 
tems are in question, both artificial or arbitrary as to any 
fundamental principle, prejudice of attachment to an ancient 
practice musf give way to the convenience of modern com- 
munities. 

The eighteenth amendment, 1855, has made it a part of 
the organic law of the state, that all moneys raised by taxa- 
tion in the towns and cities, or appropriated by the legisla- 
ture, for the support of public schools, shall be applied only 
to schools which are under the superintendence of the consti- 
tuted municipal authorities, and shall never be appropriated 
to schools maintained by any religious sect. I have not 

47 



Centennial of the Mass. Constitution. 

observed that this provision has as yet been adopted by any 
other state. Its acceptance by the people of Massachusetts 
twenty-five years ago, has given a conclusion in advance to 
questions of which the agitation has since threatened to 
spring up out of tendencies which have rapidly made head- 
way toward the establishment of parochial and denomina- 
tional schools. The authorship of this article belongs to 
the late Chief Justice Joel Parker, who was its mover and 
foremost advocate, aided by the late Vice-President Wilson, 
in the convention of 1853 ; and although it was rejected by 
the people, in that year, as an integral part of the general 
body of amendments which were framed amid the excite- 
ment of party politics, it was promptly taken up by the 
next legislature and easily passed through all the constitu- 
tional stages. ' 

The nineteenth article of amendment, 1855, has trans- 
ferred from the chief executive of the commonwealth to the 
people of the counties and districts, the selection of sheriffs, 
probate registers, clerks of the courts, and district artor- 
nies, annulling a principle which had been in existence 
since the foundation of the government. The same thing 
was attempted in the convention of 1820, and was sum- 
marily voted down. The sound and solid reasons against 
this proposition are too obvious, and have been too fre- 
quently elucidated in discussion, to warrant their present 
repetition. The history of its adoption is the history of the 
mingling of a constitutional question of enduring import- 
ance with an ephemeral question of party expediency. It 
had been carried through the constitutional convention of 
1853 by one political party, and after its rejection by the 
people it was taken up by another party on its return to 

48 



An Amendment of Doubtful Utility. 

power and adopted as one of the conditions of appeasing- its 
opponents, and of its own continuance in power. It was an 
unseaman-like instance of throwing a tub to the whale, after 
the whale had disappeared in far water. It was a propitia- 
tory offering by a noble party in the weakness of its last 
days, sacrificing an elemental principle of the constitution, 
but bringing not even the expected advantage to its authors ; 
for in the same year the party itself took its departure from 
American politics. I have heard judges say, — judges, the 
mention of whose names awakens respect and confidence 
over the commonwealth, — that the practice under this new 
system has indicated a degeneracy from the better condition 
under the old system. Attempts have since been made to 
restore the ancient constitutional method, and may it not 
be hoped the people of Massachusetts will yet return to it ? 
The eleventh amendment is that of the third article of the 
Bill of Rights, the only instance in which those Eights have 
been touched by the hand of change in the entire century. 
The original third article is the only one in the Declaration 
of which John Adams was not the author, but he had the 
credit of it, at least to some extent, in other parts of the 
United States. In the recently published Warren letters, 
already mentioned, written in 1807, he himself gives a 
curious account of an interview with him, sought by the 
pastor of a German church in a town of Pennsylvania, 
while on his last journey to Washington, pending his second 
candidacy for the presidency ; during which the minister 
made known that there was a general belief in that section 
that Mr. Adams had influence enough in making the Massa- 
chusetts constitution to establish here the Presbyterian 

[Congregational] religion and make all other sects of 

49 



Centennial of the Mass. Constitution. 

christians pay taxes for the support of it ; and Mr. Adams 
states that this report "had an immense effect" among many 
religious sects, "and turned them in such numbers as 
decided the [fourth presidential] election." This memora- 
ble thii'd article was so unbke anything contained in the 
constitutions of most of the other states, and so strongly in 
contrast with the aim and scope of religious thought after 
the Revolution, that it awakened general attention and criti- 
cism outside of New England. The precise posture, both 
towards the past and future, of public opinion on this ques- 
tion within this commonwealth, was justly stated in a letter 
of Dr. Franklin, written to Richard Price in October, 1780, 
immediately after the ratification of this instrument : 

"Though the people of Massachusetts have not in their 

new constitution kept quite clear of religious tests, yet, if 
we consider what that people were a hundred years ago, we 
must allow they have gone great lengths in liberality of 
sentiment on religious subjects ; and we may look for 
greater degrees of perfection, when their constitution, some 
years hence, shall be revised." 

A similar forecast of subsequent experience was made on 
the other side of the ocean^ by Dr. Paley. My attention 
to the following passage from his Political Philosophy, pub- 
lished in 1785, has been drawn by the very instructive dis- 
course upon the centenary of the constitution, delivered in 
January, 1880, b} r the Reverend Dr. Edward E. Hale : 

"The only plan which seems to render the legal mainten- 
ance of a clergy practicable, without the legal preference of 
one sect of christians to others, is that of an experiment 
which is said to be attempted or designed in sonic of the 
icw states of North America. In this scheme, it is not left 

50 



The Memorable Third Article. 

to the option of the subject whether he will contribute, or 
how much he shall contribute, to the maintenance of a 
christian ministry : it is only referred to his choice to deter- 
mine by what sect his contribution shall be received. . . . 
The above arrangement is undoubtedly the best that has 
been proposed upon this principle : it bears the appearance 
of liberality and justice ; it may contain some solid advan- 
tages ; nevertheless, it labors under inconveniences which 
will be found, I think, upon trial, to overbalance all its 
recommendations." 

This article made it the right and the duty of the legisla- 
ture to require of the people support of public worship and 
of religious teachers by compulsory taxation, and to enjoin 
attendance on divine worship. The address of the conven- 
tion of 1780, recommending to the people the result of its 
labors, which has been said to have been written by Samuel 
Adams, states that this article was passed with more than 
common unanimity ; but a large vote was returned against 
it, and pending the question of the ratification, it encoun- 
tered the general opposition of the citizens of Boston, 
who assembled in Faneuil Hall and adopted hostile resolu- 
tions with almost unanimous consent. The proposition was 
the natural product of the blending of the civil and ecclesi- 
astical functions of the state under the puritan regime in 
the formative period. As early as 1638, a law subjecting 
to ' ' assessment and distress " all who should not voluntarily 
support the ordinances in the churches ; a similar act in 
1654, when the colony had become large; in 1693, when 
under the new charter there were upwards of eighty 
churches, an act requiring every town to support a Congre- 
gational minister, and assessing therefor all inhabitants of 

whatever society relations ; these may be singled out among 

51 



Centennial of the Mass. Constitution. 

the many instances of the stern policy which continued, at 
times somewhat relaxing, into the latter half of the last 
century. The reactionary sentiment relating to this subject, 
which sprung up about the time of the Revolution, was not- 
sufficient to prevent the adoption of the third article, but 
large and increasing numbers became at once restive under 
its operation. The opposition to it afterwards grew more 
intensive by reason of great changes in the number and 
mutual relations of christian sects and parishes, to which 
judicial decisions added further elements of public dissatis- 
faction. The convention of 1820 contended with these dif- 
ficulties through long and grave deliberations, and after 
exhaustive discussion proposed a modification, which proved 
unsatisfactory to the people and failed of ratification. The 
agitation of the question was resumed and continued until 
the year 1833", when the present amendment was adopted. 
Of the many legislative reports upon the subject, the last 
was made in the Senate by Mr. Samuel Hoar, in 1833, who 
stated that "as the alteration would liberate the citizens 
from liability to compulsory taxation for the support of 
public worship, in the existing state of the ecclesiastical 
societies in the commonwealth" it was expedient it should 
pass. The experience of almost fifty years under the 
change has been accompanied by general content with its 
provisions ; and all that now remains of the famous third 
article, upon which volumes have been written and spoken, 
is comprised in the three simple propositions, (1) relig- 
ious equality to all denominations. (2) the right of every 
religious society to raise money for its expenses, and (3) 
the right of every person to be exempt from sharing in the 
expense unless he voluntarily enrolls himself as a member. 

52 



A Wise Policy for Constitutional Hevisison. 

The prediction of Dr. Franklin has been fulfilled, and the 
principle of absolute religious liberty, sometimes called the 
freedom of the mind, sometimes called "soul-liberty," 
traced by some to the philosophy of Descartes, adopted as 
a political policy by Roger Williams in Rhode Island 
before Descartes had published any philosophy, has now 
been a part of the constitution of Massachusetts nearly half 
a century. 

The only amendment which remains to be mentioned is 
the ninth, which I deem most valuable of all. After 1795, 
and prior to 1820, there was no provision in the constitu- 
tion for its revisal. The convention of that year, on the 
report of Mr. Webster, adopted this article, which provides 
that any amendment approved by a majority of the Senators 
and two-thirds of the Represesentatives voting upon it in 
two successive years, and then being ratified by a majority 
of the people voting on it, shall become a part of the con- 
stitution. And this article was ratified by the people, 
although it appears that they were so adverse to opening 
any door for alterations of the organic structure of their 
government, that nearly one-third of all the votes cast were 
given against even this well-guarded provision. It was the 
object of the convention in providing this method for possi- 
ble changes in the constitution, to forestall any necessity for 
calling conventions, and to discourage a practice, since not 
uncommon in some of the states, of educating the people in 
the exercise of constitution-making. The admirable success 
of this provision is shown by the fact that of the whole 
number of amendments made in the last sixty years, all but 
the nine which were initiated by the convention of 1820, 
that is to say, eighteen of the twenty-seven, "have come to 

53 



Centennial of the Mass. Constitution. 

us in the manner thus provided. The greater safety of this 
method over that of conventions made easy and frequent, is 
obvious to reason, and it received the signal approval of the 
people themselves in 1853, when they rejected the whole 
catalogue of amendments offered to them by the convention 
of that year, including six which only two years later they 
ratified when coining to them through the stages pointed 
out by the convention of 1820. It may now be regarded 
the settled conviction of the people of Massachusetts that 
they prefer to obtain amendments of their government in 
the more slow, more calm, more conservative manner herein 
indicated. The convention of 1853 offered to the citizens 
of the state a polic} T of such frequent conventions for con- 
stitutional revisal that now, after subsidence of the excite- 
ment of that day, it may fairly be pronounced unprece- 
dented and grotesque. The folly of its proposed treatment 
of a supposed chronic distemper in the body politic, only 
from the dispensary of frequent and periodical constitutional 
conventions, was graphically exposed by Dr. J. G. Palfrey, 
in his clear and analytical address to the people. " Flor- 
ence, [said Dr. Palfrey], before her frolics of this kind were 
brought to an end by the Grand Ducal despotism, had at 
one time, if I remember aright, live constitutions in ten 
years. It was not the way to a quiet life." 

An analysis of the several amendments accepted in the 
last sixty years, discloses that we live under the same sub- 
stantive form of government which was established one hun- 
dred years ago. But five of all the amendments have intro- 
duced any new subject matter in the constitution : all the 
rest of them have been modifications: some of them repeal- 
ing others; many of them susceptible of being grouped 

54 



The Unity of the Constitution Intact. 

under a single head as affecting the machinery of the elec- 
tion of the executive and legislative officers ; a portion of 
them merely formal ; and only a small part of the whole 
number touching any elementary principle of the govern- 
ment. Since the establishment of this constitution, the 
population of the commonwealth has more than quintupled, 
and there has been more than a corresponding advance in 
its aggregated wealth, and in the diffusion of competence 
and comfort among its subjects. With rare exceptions, the 
generations have carried out in good faith the intent of the 
framers. Under the high and inspiring tone which they 
transfused into the constitution there has been, there is now, 
constant advancement on every field of "literature and the 
sciences, of humanity and general benevolence, of public 
and private charity," of legislation, of judicial interpreta- 
tion, and impartial administration of the laws. The later 
change of the homogeneousness of our population by the 
admixture of races, imposes upon men of education and 
authority, a constantly increasing duty to impress upon the 
people the value of this constitution, and the importance of 
protecting it from every unnecessary alteration. And upon 
no body of men does this duty rest with higher responsi- 
bility than upon the Historical Societies of Massachusetts, 
in the archives of which the names and the fame of its 
authors are treasured and guarded. 

There is no technical science of government, and there 
can be none. The history of free nations has illustrated 
the truth that governments are growths, springing from 
necessities and conveniences suggested by experience ; and 
they approximate to the highest dictates of reason, accord- 
ing to the growth of communities in intelligence and virtue. 

55 



Centennial of the Mass. Constitution. 

The principles essential for the groundwork of government 
for a free and virtuous commonwealth are few and elemen- 
tary, and the world has never beheld them so well applied, 
or so happily illustrated, as in the governments of the states 
of this union. Of all these states, I may be pardoned for 
selecting Massachusetts as a type for the sound principles 
embodied in the foundations, and for a steadfast adherence 
to them through a hundred years. And yet, how simple 
the essential parts of all this frame- work are, has been well 
stated by John Adams, the framer-in-chief : 

"Representations, instead of collections, of the people; 
a total separation of the executive from the legislative 
power, and of the judicial from both : and a balance in the 
legislature, by three independent, equal branches : are per- 
haps the three only discoveries in the constitution of a free 
government, since the institution of Lycurgus. Even these 
have been so unfortunate that they have never spread : the 
first has been given up by all the nations, excepting one, 
who had once adopted it : and the other two, reduced to 
practice, if not invented, by the English nation, have never 
been imitated by any other except their own descendants in 
America." 



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